Nicolette v. Caruso

• Decision Date: 04 November 2003
• Docket Number: Civil Action 02-1368.
• Parties: Raymond NICOLETTE, Plaintiff, v. Christopher CARUSO, Assistant Manager for the Township of Findlay, et al, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

315 F.Supp.2d 710

Raymond NICOLETTE, Plaintiff, v. Christopher CARUSO, Assistant Manager for the Township of Findlay, et al, Defendants.

Civil Action 02-1368.

United States District Court, W.D. Pennsylvania.

November 4, 2003.

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Raymond Nicolette, Lisbon, OH, Pro se.

Vicki L. Beatty, Stephen M. Pincus, Campbell, Durrant & Beatty, Pittsburgh, PA, for Defendant.

MEMORANDUM ORDER

CONTI, District Judge.

Background

Pending before this court is the motion by defendants Christopher Caruso, Gary J. Klingman, Raymond L. Chappell, Jr. and Alan T. Shuckrow ("defendants") to dismiss (Doc. No. 3) the complaint of plaintiff Raymond Nicolette ("plaintiff") and plaintiff's motion to supplement the civil action complaint (Doc. 15). For the reasons stated below, defendants' motion to dismiss is GRANTED as to all claims except plaintiff's substantive due process claims founded on the Fourteenth Amendment to the United States Constitution and on Article I, sections 1 and 26 of the Pennsylvania Constitution (the "remaining claims"). As to the remaining claims, defendants' motion to dismiss is DENIED. Plaintiff's motion to supplement the civil action complaint is DENIED as moot.

Facts Accepted As True For Purposes of Deciding the Motion

Plaintiff Raymond Nicolette, an Ohio resident, owns and operates Mazzaro Coal and Disposal Company, Inc., a Pennsylvania corporation with its principal place of business in Findlay Township, Pennsylvania, and Empire Environmental, Inc., an Ohio corporation that disposes construction and demolition waste in Ohio. Pl. Compl. ¶¶ 11-13. Plaintiff also owns 188 acres of land in Findlay Township, Pennsylvania, alongside the south end of U.S. Route 30. Id. ¶ 16. The property abuts that of his ex-wife, Carol Nicoletti ("C.N."), who owns 107 acres of land on the north side of U.S. Route 30. Id. ¶ 17. C.N. owns and operates Virtual Holdings, Inc. d/b/a Empire Roll-Off ("Empire"), a Pennsylvania corporation with its principal place of business in Findlay Township, Pennsylvania. Id. ¶ 13. The parcels of property owned by plaintiff and C.N. have been continuously used for waste management purposes since the 1960s, when Mike Mazzarro ("Mazzarro"), the former owner of both parcels and C.N.'s father, began a sanitary landfill operation. Id. ¶ 19.

In 1972, when landfill operations on the north side of U.S. Route 30 ceased, Mazzarro opened up a new landfill on part of what is now plaintiff's parcel. Id. ¶¶ 20-21. The landfill initially paid Findlay Township four percent (4%) of gross fees, a figure that was later increased to ten percent (10%). The landfill closed in 1987.¹ Id. ¶ 21. Plaintiff continued to operate businesses engaged in the collection and hauling of construction and demolition waste materials, using a landfill operated by Browning-Ferris Industries, Inc. ("BFI") in Findlay Township to dispose of his materials. Id. ¶ 22. Finding better disposal rates at a Columbiana County, Ohio landfill, plaintiff discontinued disposing his waste at BFI's landfill. The discontinuation reduced the amount of the gross receipts percentage fee paid to Findlay Township by BFI. Id. ¶ 23.

Plaintiff claims that his discontinuation of waste disposal in Findlay Township led to a "retaliatory campaign of unrelenting harassment and abuse" by Findlay Township, through defendants,² against plaintiff and his businesses. Id. ¶ 24. Specifically, he claims that Findlay Township officials, agents and employees targeted him for selective enforcement of Findlay Township regulations and denied his plans to construct and operate a public parking facility, golf driving range, and collection and recycling facility. Id. ¶¶ 25-39. Plaintiff contends he spent thousands of dollars in environmental testing, architectural and engineering diagrams and maps, and legal fees in attempting to comply with numerous Findlay Township requests for revisions, qualifications, and certifications regarding the projects. Id. ¶ 26. Plaintiff further alleges that Findlay Township prevented his business opportunities because part of a proposed Pennsylvania Turnpike connector is planned to proceed through his property. Plaintiff contends that defendants' actions in preventing business activities on his property will preclude the value of the real estate from rising, thereby permitting the Pennsylvania Turnpike Commission to obtain plaintiff's property at a price lower than what he should be paid. Id. ¶ 75.

A joint proposal for a golf course driving range was submitted by plaintiff and C.N. to Findlay Township in 1995. Id. ¶ 27. The property was owned by C.N., but was apparently leased to plaintiff for a term of 99 years. Id. Appendix 1. Plaintiff estimates that he spent over $40,000 in costs on the project, which was abandoned after the Environmental Protection Agency and the Pennsylvania Department of Environmental Protection could not "absolutely" guarantee that the site would not pose a material risk to public health. Id. ¶ 29. Earlier, both agencies had declared that the site would not pose a material risk to public health. Id ¶ 28. Plaintiff alleges that Findlay Township, through the actions of defendants, "arbitrarily and capriciously" required that he present verification meeting the absolutist standard. Neither agency, however, could provide the verification required by Findlay Township and he was unable to secure Township approval for the driving range. Id. ¶ 29. Plaintiff alleges that the "absolute" standard could not be met by any site and that the standard was therefore arbitrary and capricious.

Plaintiff next attempted to gain approval to establish a collection and recycling facility on the same site. Id. ¶ 31. Findlay Township denied his permit request, an action plaintiff states "wholly lacked any rational basis." Id. ¶ 32. The township also denied plaintiff a permit to reduce mine drainage from his acreage. Id. ¶ 34. Following this event, plaintiff contends that the township, acting through defendants, attempted to prevent C.N. and him from operating Empire by seeking an injunction in the Court of Common Pleas of Allegheny County. Id. ¶ 35. This litigation resulted in a consent decree entered into between the township and Empire that permitted the continued operation of Empire so long as no collection and recycling facility was opened on C.N.'s property. Id. ¶ 36.

On March 1, 2002, Caruso, acting in his capacity as zoning administrator for Findlay Township, issued an enforcement order against plaintiff, Mazzaro Coal and Disposal Co., and C.N. d/b/a Empire for violating the consent decree. Id. ¶ 37-38. On April 18, 2002, Shuckrow, acting in his capacity as solicitor for Findlay Township, filed a civil complaint against plaintiff, C.N., Empire, and Mazzaro Coal and Disposal Co. At a July 10, 2002 hearing before an Allegheny County district justice, defendants produced a deed identifying Mazzaro Coal and Disposal Company as the owner of the property upon which the alleged violation occurred. Over the objection of the defendants, the district justice dismissed plaintiff, C.N. and Empire from that civil complaint.³

Procedural History

Plaintiff, acting pro se, brought claims against defendants pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging violations of his Fourth, Fifth, Ninth, and Fourteenth Amendment rights under the Constitution of the United States. Plaintiff also asserts anti-trust claims pursuant to the Sherman Act, 15 U.S.C. § 1 et seq., and the Clayton Act, 15 U.S.C. § 12 et seq. Plaintiff further invokes the court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367, bringing various claims under the Pennsylvania Constitution,⁴ as well as tort claims for wrongful use of civil proceedings⁵ and malicious prosecution. (Doc. No. 1).⁶ Defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 3).

Standard of Review

A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). In deciding a motion to dismiss the court is not opining on whether the plaintiff will be likely to prevail on the merits. Rather, when considering a motion to dismiss, the court accepts as true all factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.2002). The pleader is required to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist." Kost, 1 F.3d at 183 (citing 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, Federal Practice and Procedure § 1357 (2d ed.1990)). A motion to dismiss will only be granted if it appears that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Id. Moreover, the court is under a duty to examine the complaint independently to determine if the factual allegations set forth could provide relief under any viable legal theory. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Discussion

While this court is mindful that pro se plaintiffs are not held to as high of a standard as litigants that are represented by counsel, a pro se plaintiff "must still plead the essential elements of his claim and is not excused from conforming to the standard rules of civil procedure." See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Thus, plaintiff, even though he is pro se, must set forth sufficient information that would allow this court to infer that, accepting plaintiff's allegations as true, defendants violated plaintiff's federal rights. Kost, 1 F.3d at 183. Because plaintiff is pro se and subjected to "less stringent standards than formal pleadings drafted by lawyers," this court...